Citation Nr: 9914902
Decision Date: 05/26/99 Archive Date: 06/07/99
DOCKET NO. 95-31 607 ) DATE
)
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On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to dependency and indemnity compensation (DIC)
pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from November 1942 to November
1945. He died in March 1981. The appellant is his widow.
By decision of November 1982, the Board of Veterans Appeals
(Board) denied the appellant DIC pursuant to the provisions
of 38 U.S.C. § 351 (now 38 U.S.C.A. § 1151).
In November 1991, in another case, the U.S. Court of Appeals
for Veterans Claims (known as the U.S. Court of Veterans
appeals prior to March 1999) (hereinafter, the "Court")
invalidated 38 C.F.R. § 3.358(c)(3) (1991), part of the VA
regulation applicable to claims arising under 38 U.S.C.A.
§ 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991),
aff'd sub nom. Gardner v. Brown, 5 F. 3d 1456 (Fed. Cir.
1993), aff'd Brown v. Gardner, 513 U.S. 115 (1994).
In January 1992, the appellant filed an application to reopen
her claim for DIC pursuant to the provisions of 38 U.S.C.A.
§ 1151. By letters of February 1992 and December 1994, the
RO notified her of a VA-wide stay of consideration of claims
arising under 38 U.S.C.A. § 1151 pending resolution of
litigation in Gardner. In March 1995, amended regulations
were published deleting the fault or accident requirement of
38 C.F.R. § 3.358, in order to conform the regulations to the
U.S. Supreme Court's decision in Gardner.
This appeal arises from an August 1995 rating action which
denied DIC pursuant to the provisions of 38 U.S.C.A. § 1151
on the basis of a review of all the evidence of record under
the amended regulations. The case was transferred to the
Board in October 1997 for appellate consideration. By
decisions of November 1997 and June 1998, the Board remanded
this case to the RO for further development of the evidence
and for due process development.
REMAND
By decisions of November 1997 and June 1998, the Board
remanded this case to the RO for further development of the
evidence, specifically, to obtain and associate with the
claims folder copies of the veteran's medical records at the
VA Medical Center (VAMC), Columbia, South Carolina from
January to March 1981, and evidence associated with the
appellant's 1985/86 Federal Tort Claim, to include copies of
depositions of Everett L. Dargan, M.D., W. Lawrence
Schoolmeester, M.D., and a Doctor Utley.
With regard to the RO's attempt to obtain medical records
from the VAMC, additional medical records were received in
July 1998 with a notation that no further medical records
were available. A subsequent attempt to develop the
evidentiary record at the Board in April 1999 resulted in
information that administrative records existed relating to
the veteran's hospitalization and outpatient treatment at the
VAMC from January to March 1981. The Board finds that the RO
should obtain copies of all such administrative records for
association with the claims folder.
With regard to the RO's attempt to obtain copies of the
abovementioned doctors' depositions associated with the
appellant's 1985/86 Federal Tort Claim, the offices of Drs.
Dargan and Schoolmeester responded in October 1998 that no
pertinent records were available. A subsequent attempt to
develop the evidentiary record at the Board in April 1999
resulted in information that such depositions might be
located at the Records Processing Center (RPC) in Suitland,
Maryland. The Board finds that the RO should attempt to
obtain copies of all such pertinent records from the RPC for
association with the claims folder.
Under the circumstances, this case is REMANDED to the RO for
the following action:
1. The RO should contact the VAMC,
Columbia, South Carolina, and obtain
and associate with the claims folder
copies of all administrative records
pertaining to the veteran's inpatient
and outpatient treatment at that
facility from January until his death
in March 1981.
2. The RO should contact the RPC in
Suitland, Maryland and request copies
of all records associated with the
appellant's claim (as executrix of the
veteran's estate) under the Federal
Tort Claims Act, 28 U.S.C. § 2674 et
seq., pursued from February 1985 until
settled in May 1986 in the U.S.
District Court for the District of
South Carolina, Columbia Division
(Civil Action No. 3:85-564-3). The
evidence sought includes all responses
to interrogatories, depositions, and
medical reports containing medical
opinions, to specifically include the
August 1985 depositions of Everett L.
Dargan, M.D. and Doctor Utley, and the
September and October 1985 depositions
of W. Lawrence Schoolmeester, M.D.
All records obtained and all responses
from the RPC should be associated with
the claims folder.
3. After the abovementioned records have
been obtained and associated with the
claims folder, the RO should refer the
entire claims folder to the VA
physician who rendered medical
opinions in this case in March and
November 1998. The physician should
be requested to again review the
record and comment as to whether his
opinion as articulated in March and
November 1998 is still the same. If
his opinion is at variance with any
medical opinion reflected in a
deposition or medical record in
evidence, he should explain the
complete rationale for his opinion in
a written report, which should be
associated with the claims folder.
Thereafter, the RO should review the evidence and determine
whether the appellant's claim may now be granted. If not,
she and her representative should be issued an appropriate
Supplemental Statement of the Case, and the case should be
returned to the Board for further appellate consideration.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).